Skaggs v. State

Decision Date26 July 1982
Docket NumberNo. 4-781A45,4-781A45
Citation438 N.E.2d 301
PartiesJames SKAGGS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Jeffrey C. Eggers, Roger Young, Franklin, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.



James Skaggs was convicted of child molesting, Ind.Code 35-42-4-3, 1 a class B felony, and sentenced to six years in prison. A motion to correct errors was timely filed and overruled. Skaggs now seeks appellate review of his conviction.


1. Was the defendant denied a fair trial because of improper remarks made by the prosecutor?

2. May a party impeach its own witness?

3. Did the trial court err in refusing to permit the defendant to inquire into the sexual history of the victim?

4. Did the State fail to comply with a discovery order?

5. Was certain hearsay evidence improperly admitted under the res gestae exception to the hearsay rule?

6. Did the court give an improper jury instruction on uncorroborated evidence in sex offense cases?

7. Was the evidence sufficient to support the verdict?

8. Should a new trial be ordered on the basis of newly discovered evidence?


The victim was eleven years old at the time she was molested by Skaggs, her stepfather. She testified that on the afternoon of July 2, 1980, she was taking a nap with Skaggs. She was awakened by a sharp pain in her stomach. She realized that her When the girl's mother arrived she was taken to the local hospital for rape tests and questioned by the police. Skaggs was arrested later and charged with the crime of child molesting.

                stepfather was lying on top of her and she could feel his penis moving inside of her vagina, causing a pain, "like a knife going into [her] stomach."   The victim dressed herself and walked to the home of a friend, Susan Clay, and told her of the incident.  Susan informed her mother, who called the victim's mother at work and asked her to come home


During voir dire of prospective jurors the prosecutor asked:

"If you believe the victim, would you find the defendant guilty?"

Later the prosecutor asked a member of the venire :

"Would you agree that nothing in life is capable of proof beyond a reasonable doubt?"

After selection of the jury, the State moved for separation of the witnesses, "to insure fairness to the defendant." This motion was made in the jury's presence. Skaggs contends that these comments were subtle attempts to prejudice the jury in favor of the State and ease burden of proof requirement.

The trial court has broad discretion to regulate the form and scope of voir dire examination. Hopkins v. State, (1981) Ind., 429 N.E.2d 631. Certain external limitations, however, have been imposed on the juror selection process to insure fairness. Questions propounded to prospective jurors should be designed to discover prejudice and eliminate bias. Staton v. State, (1981) Ind., 428 N.E.2d 1203. Questions which seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are improper. Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409. Voir dire should be restricted to testing the capacity and competency of prospective jurors. Garrett v. State, (1973) 157 Ind.App. 426, 300 N.E.2d 696.

The questions challenged by Skaggs do not warrant reversal. They seek to elicit responses that would identify bias in applying the reasonable doubt standard and the rule regarding uncorroborated victim testimony in sex offense cases. It is proper to expose jurors to concept of reasonable doubt. Hutcherson v. State, (1978) 269 Ind. 331, 380 N.E.2d 1219. The prosecutor's question does not go beyond inquiry into possible bias in the application of the reasonable doubt standard.

The same may be said for the State's reference to uncorroborated testimony in sex offense cases. Questions intended to identify juror bias toward certain witnesses are not improper. Hopkins, supra. We believe the trial court was within its discretion to permit that question. Propounded questions must be placed within the entire context of the voir dire which included numerous statements to the venire both by the trial court and counsel concerning the State's burden of proof, the presumption of innocence, the accepted definition of reasonable doubt, and the trial court's function of instructing the jury.

Skaggs objected to the prosecutor's comment when he moved to separate witnesses "in fairness to the defendant," but offers no argument to show how he was prejudiced by these remarks. We conclude his objection that the prosecutor was attempting to influence the jury to be pre-disposed to a finding of guilt is without merit.

After the commencement of evidence the following exchange occurred during the State's cross-examination of Skaggs:

"Q. Uh, Mr. Skaggs, are you saying that you had no sexual intercourse, or are you saying that you don't know if you had sexual intercourse?

"A. I'm saying I didn't have.

"Q. You do recall telling Officer Jerry Long that you might have, but you don't know?

"A. No, I didn't tell Jerry Long that, neither.

"Q. You didn't say that?

"A. No, I didn't."

Skaggs's attorney objected to the second question and answer and moved for a mistrial. It appears that the prosecutor knew Skaggs had not made such a statement. Rather, the State was characterizing a similar statement made by Skaggs. The basis for the motion for mistrial was that State had refused to comply with discovery. After a bench conference the jury was instructed to disregard the statement and told no such statement had been made.

An admonishment to the jury presumptively cures error. Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. To overcome this presumption Skaggs must show the admonishment was insufficient to dispel prejudice. Skaggs has not done this. His argument is directed to the impropriety of the statement itself, not its prejudicial impact. We are satisfied "no residuum" of prejudice remained. Coleman v. State, (1982) Ind., 433 N.E.2d 384.


During its case in chief the State called Mrs. Skaggs, mother of the prosecutrix. When she offered testimony unfavorable to the State's case the prosecutor attempted to impeach the witness. Skaggs objected on the ground that Ind.Code 34-1-14-15 3 does not permit a party to impeach its own witness. After a bench conference the trial court sustained a modified objection on the theory that no foundation had been laid for impeaching testimony and the trial continued. Skaggs asserted no further substantive objection to the testimony of Mrs. Skaggs.

An objection that is sustained by the trial court cannot serve as the foundation for an argument on appeal. White v. Lafoon, (1963) 135 Ind.App. 100, 192 N.E.2d 474. 4 Skaggs could have renewed his objection during the examination of Mrs. Skaggs to preserve his objection based on IC 34-1-14-15. Id.


Before the prosecutrix was called as a witness, Skaggs requested permission to cross-examine the witness. According to the terms of the request, Skaggs would ask a single question about the prosecutrix's prior sexual experience. A negative answer would be accepted without further questioning. The motion was overruled on the authority of Ind.Code 35-1-32.5-1 to 4, Indiana's Rape Shield Law. Skaggs argues that he was entitled to cross-examine the victim because the Rape Shield Law applies only to evidence of prior sexual activity, not prior sexual inactivity. He concludes therefore, the Rape Shield Law has no application to his request. We do not agree.

We first note the Rape Shield statute creates a blanket exclusion for evidence of a victim's prior sexual conduct. IC 35-1-32.5-1 states:

"In a prosecution for a sex crime as defined in IC 35-42-4 [35-42-4-1--35-42-4-4], evidence of the victim's past sexual conduct, evidence of the past sexual conduct of a witness other than the accused, opinion evidence of the victim's past sexual conduct, opinion evidence of the past sexual conduct of a witness other than the accused, reputation evidence of the victim's past sexual conduct, and reputation evidence of the past sexual conduct of a witness other than the accused may not be admitted, nor may reference be made to this evidence in the presence of the jury, except as provided in this chapter."

When reviewing a statute, we look to the statute as a whole to determine the intention of the legislature. IC 1-1-4-1; Edward Rose of Indiana v. Fountain, (1982) Ind.App., 431 N.E.2d 543. To that end we note the purpose of the Rape Shield statute is to prohibit inquiry into the victim's sexual history. Geyer v. City of Logansport, (1977) 267 Ind. 334, 370 N.E.2d 333. That includes reference to all prior sexual history.

Our reading of legislative intent is confirmed by section 2 of the statute which provides exceptions to the general exclusionary rule. That section states:

"The following evidence proscribed in section 1 [35-1-32.5-1] of this chapter may be introduced if the judge finds, under the procedure provided in section 3 [35-1-32.5-3] of this chapter, that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's or a witness's past sexual conduct with the defendant; or

(b) Evidence which in a specific instance of sexual activity shows that some person other than the defendant committed the act upon which the prosecution is founded."

Since such evidence may be admitted under the conditions stated in IC 35-1-32.5-2, it is clear the legislature intended all other such evidence should be excluded.

Not only does this section represent a legislative enactment of the public policy favoring protection of victims of sexual abuse by limiting evidence to matters involving the defendant or...

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